Wichita eagle. [volume] (Wichita, Kan.) 1886-1890, 1887-09-22
AN IMPORTANT DECISION.

In regard to the entry of fifteen quartz
sections of land in Harper county, whicl
we think of sufficient interest to people Ii
southwestern Kansas to justify publishing
In the fall of 1882 fifteen different person
entered quarter section of land, and after
wards sold the land to NJ. w. Halsey, o
Anthony, for which land patents wer
issued to Halsey. After he purchased tn
lands he mortgaged them to the Lombard
Mortgage company. The United State
commenced fifteen different suits to canoe
The entries and set aside the patents, max
ing each of the entrymen, NJ. W. Halsey
and the Lombard Mortgage company, de-
PENDANTS. Hatton & Ruggles defended fol
Halsey, and Harris. Harris & Vermillior
the Lombard Mortgage company. Thu
decision speaks for Itself, and is as follows
In the circuit court of the United States
for the district Of Kansas.
United States vs.. J. S. Edwards. ct al.
Number 5,720 and fourteen succeeding
cases.
Opinion. Brewer. c. j.
Fifteen suits have been brought by the
| United States to set aside the patents to as
! many different tracts of land In the equity
of Harper, in this state. One party is q
defendant In all the cases. The facts in
all are similar, and they may therefore bt
considered together. The rule to be OBJ
served and the amount of proof requisite
| in cases of this character, have recently
been stated by the supreme court in the
| Maxwell land grant case, 121 .. S. 1895, as
follows: 1--WE take the general doctrine tc
be, that when in a court of equity it is
| written instrument itself, the testimony
equivocal and convincing, and that it can
not be done upon bare preponderance of
evidence which leaves the issue in doubt.
| If the proposition, as thus laid down in
| the cases cited, is sound in regard to the
ordinary contracts of private individuals,
how much more should 1t be observed
where the attempt to annul the grants, the
patents and other solemn evidences of title
emanating from the government Of the
United States under Its official seal2 In
this class of cases the respect due patent,
the presumptions thst all the preceding
steps required by the law have been OBJ
seryed before its issue. the immense import.
ance and necessitv of the stability of titles
dependant upon these official instruments,
demand that the effort to set them aside, to
annul them, or to correct mistakes in them,
should.be only successful when the allega-
tons on which this attempted are clearly
stated and fully sustained by proof. with
that exposition of the law as my guide /
pass to the consideration eff the facts of
these cases. The final receipts In all these
cases were issued In the fall of 'S2 and the
lands were the same season purchased by
the defendant NJ w. Halsey. The pro-
ceedings in the land Office were regular on
their face and the parties entering the land,
the subsequent patentees, were real parties
and not fictitious persons as In the Moffat
case; and now, before going farther into
the details, | am met with this question
Must the entry have been made subject to the
provisions of the general pre- emplion laws,
and If not what was requisite to entitle the
party to it? These lands are part of the
Usage Indian trust and diminished re-
serve lands which were decided by the
Usage tribe Of Indians to the government
by the treaty Of Jan. 81, 1887" United
States Statute at large, page 6S7, and as
provided In said treaty were ''to be held
In trust for said Indians and to be surveyed
and sold for their benefit by the secretary
of the interior" On April TO- 1859, by joint
resolution of congress, that body provided
for the sale Of these lands to ''any bona fide
settler residing upon any portion thereof. y
This act was re-enacted on July Is, 1870,
with some slight changes.
In Foster VS. FROST II Kansas 350
the construction ofthis act came before
the supreme court of that state
and it was there held that the
claimants right to purchase was not de-
termined by the general pre- emption law
was a member of that court al that time
and took part in this decision. Two or
three subsequent acts we're passed by con-
gress which do not require notice. for on
the 2Sth day of May, 1880, an act was
passed which seems to me controls In the
matter. The first section makes provision
for then residing settlers; the second
reads as follows: THAT all the said Indian
lands remaining unsold and unappropriated
and not embraced In the claims provided
for in section one of this act, shall be sub
ject to disposal to actual settlers only hav-
ing the qualifications of preemptors; such
settlers shall make due application to the
register with proof of settlement and quail
ifications as aforesaid and upon payment
shall be permitted to enter" etc. All that
Is required of the applicant is that he shall
have the qualification Of preemptor, that
he shall be an actual settler, and
that he shall make payment. As the
government held these lands under trust
TO convert them into cash its primary OBJ
ject was of course to realize as soon and as
much as possible, and not as in respect to
public lands generally to have them occu-
pied and improved; so it might probably
ignore the questions Of improvement or
length of occupation; the trust was full
filled when the money was obtained.
The land department has recently placed
the same construction upon this matter: see
the acting secretary Muldrow, to commission
er Sparks of date December %, 1886. as
found In Cobb's Land Owner of January
IS, 1887, on page 33S, and the circular of
commissioner Sparks of date April &c,
1887. approved by the acting secretary and
published in CObb's Land Owner of June
l, 1887, on page 5S. Now there is no dis
pute that the money was paid, two hundred
dollars for esch quarter section, and 1t Is
abundantly shown that defendant Halsey
purchased from each party. entering his
separate tract, paying him FIVE hundred
dollar therefor. There is not sctntilla of
testimony to show that these entries were
made through any collision or by virtue
of any agreement between Halsey and the
parties entering; there is not particle of
testimony that shows that any one of these
parties entering did not have the qualifica-
tons of pre- emptor, except perhaps as to
one party. As to him there is testimony,